Education Week contributing writer Bryan Toporek brings you K-12 sports coverage that reaches far beyond box scores. He has written about education for Education Week and Education Week Teacher, high school sports for the Falls Church News-Press in Virginia, and is currently a Quality Editor for Bleacher Report.

Cheerleading Can't Count as Sport for Title IX, Appeals Court Rules

Colleges are still not allowed to count competitive cheerleading as a sport when trying to satisfy compliance standards of Title IX, a federal appeals court ruled Tuesday.

The decision is "broadly applicable," according to Neena Chaudhry, senior counsel at the National Women's Law Center, meaning that K-12 schools also can't count competitive cheer squads as varsity sports for the purposes of Title IX, the federal law which prohibits gender-based discrimination in any federally financed educational opportunity.

"If cheerleading is underdeveloped at the college level, I can't imagine it'll be declared otherwise at the high school level," Chaudhry said in an interview today. "... It's a precedent-setting case."

Back in 2009, Quinnipiac University decided to cut three sports teams, including women's volleyball, while adding competitive cheerleading as a new varsity sport.

Not surprisingly, the university's women's volleyball team didn't take kindly to that decision. Team members sued the school, arguing that the elimination of volleyball in favor of competitive cheerleading was gender-based discrimination in violation of Title IX.

A district court agreed with the squad, ruling in 2010 that Quinnpiac did violate Title IX by failing to provide equal athletic opportunities to females after eliminating the women's volleyball team. In the decision, District Judge Stefan R. Underhill ruled that competitive cheerleading "does not qualify as a varsity sport for the purposes of Title IX."

Fast-forward to Tuesday, and the appeals court upheld every part of the district court's decision.

In the Aug. 7 decision in Biedieger v. Quinnipiac University, the 2nd U.S. Circuit Court of Appeals described competitive cheerleading as a "late [20th]-century outgrowth of traditional sideline cheerleading," which aims to compete against other squads instead of entertaining audiences at school functions. Competitive cheerleading "emphasize[s] the more gymnastic elements of sideline cheerleading," such as aerial maneuvers and floor tumbles.

However, neither the National Collegiate Athletic Association nor U.S. Department of Education has yet declared competitive cheerleading a sport (or even an "emerging sport"), the appeals court wrote. The court noted two letters that the department's office for civil rights sent to the Minnesota State High School League in 2000, indicating that competitive cheerleading "is presumptively not a sport," leaving open the possibility that it could, in certain cases, be counted.

In Quinnipiac's case, the court noted how the competitive cheer squad "diverge[d] from the typical varsity program," with no allotted locker space, a recruitment system limited to on-campus students, and a competition system that allowed for five different scoring systems throughout 2009-10.

The combination of those factors led the court to conclude that, "at this point in time, the University's competitive cheer team cannot count as a sport under Title IX."

However, if or when the NCAA or Dept. of Ed. does declare competitive cheerleading to be a sport, it will trigger "a presumption in favor of counting its participants under Title IX," the appeals court wrote.

There's no indication as to whether or not Quinnipiac will appeal this decision, according to Chaudhry. My colleague Mark Walsh wrote more on the case in The School Law Blog.

The appeals court also sided with the district court by red-flagging the issue of Quinnipiac requiring female athletes on the cross-country team to also participate on the indoor and outdoor track teams for Title IX purposes, including those who are injured or red-shirted.

Quinnipiac was attempting to prove its Title IX compliance by satisfying the prong requiring a proportional distribution of male and female athletes compared with the gender breakdown of the overall student population, Chaudhry said.

However, the court ruled that the 11 injured and red-shirted athletes should not be counted under Title IX, as there was doubt about whether those females received "genuine participation opportunities" on the indoor and outdoor track squads.

As many as four dozen universities are allegedly doctoring their athletic rosters by double- and triple-counting females, according to a New York Timesreview released in April 2011.

UPDATE (2:40 p.m. ET): The National Federation of State High School Associations just issued a statement on the ruling, saying in part, "the NFHS believes that competitive cheer (whether called cheer, stunt or acrobatics and tumbling) can play a parallel role as a Title IX-countable sport."

"With an eye toward adherence to judicial and administrative guidance, the NFHS and its membership are exploring options," the statement reads.

Photo: Members of the Nimitz, Texas, Junior High cheer squad rehearse earlier this year before competing in the National Cheerleading Association's National Competition. (Albert Cesare/Odessa American/AP-File)

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